STEWART v POLICE - [2007] SASC 148

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
STEWART v POLICE
[2007] SASC 148
Judgment of The Honourable Justice Debelle (ex tempore)
1 May 2007
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
Appellant pleaded guilty to four counts of driving motor vehicle whilst not authorised to do so – previous conviction for same offence – mandatory period of three years’ disqualification - magistrate disqualified appellant from holding or obtaining driver’s licence for two periods of three years with the second disqualification cumulative upon the first – magistrate imposed term of imprisonment but suspended the sentence upon appellant entering into good behaviour bond – whether sentence manifestly excessive – whether periods of disqualification are to be served cumulatively or concurrently – totality principle.
Criminal Law (Sentencing) Act 1982 s 11, s 18A; Motor Vehicles Act 1959 s 74; Road Traffic Act 1961 s 169A, referred to.
Boehm v Milham (1980) 24 SASR 98, applied.

STEWART v POLICE
[2007] SASC 148
Magistrates Appeal: Criminal

DEBELLE J. This is an appeal against sentence.
On 5 February 2007, in the Elizabeth Magistrates Court, the appellant pleaded guilty to a series of driving offences charged on four complaints.
Before noting the offences, it is necessary to notice that, on 11 May 2004, the appellant had been convicted for driving whilst not authorised to do so contrary to s 74(2) of the Motor Vehicles Act1959, that is to say, driving without being the holder of a driver’s licence. The offending to which the appellant pleaded guilty involved a number of offences for driving whilst unauthorised to do so contrary to s 74(2) of the Motor Vehicles Act. Section 74(5) of that Act provides that where a court subsequently convicts a person for that same offence the court must order that the person be disqualified from holding or obtaining a driver’s licence for such period, not less than three years, as the court thinks fit. Section 74(5) prohibits any reduction or mitigation of that period of disqualification. Section 74(6) provides that a subsequent offence is an offence committed within three years of the earlier offence. Those provisions will explain the orders which the magistrate made.
The first complaint charged one offence, namely, driving on Waterloo Corner Road, Salisbury, on 24 August 2005, when not authorised to do so contrary to s 74(2) of the Motor Vehicles Act. It is further alleged that the appellant at no time held a driver’s licence in any part of the Commonwealth. For this offence the magistrate ordered the appellant to pay fees and costs totalling $162 and disqualified the appellant from holding or obtaining a driver’s licence for a period of three years.
The second complaint charged three offences which occurred on 4 December 2005 on Port Road at Adelaide. They were driving an unregistered motor vehicle, driving an uninsured motor vehicle, and driving a motor vehicle whilst unauthorised to do so. Again, it was alleged the appellant had never held a driver’s licence in any part of the Commonwealth. For this offending the magistrate ordered fees and costs totalling $260. The magistrate did not order any penalty in respect of the first count. For the second count, the magistrate disqualified the appellant from holding or obtaining a driver’s licence for a period of four days. For the offence of driving whilst unauthorised to do so, the magistrate disqualified the appellant from holding or obtaining a driver’s licence for a period of three years.
The third complaint charged one offence, namely, driving a motor vehicle on Diment Road at Salisbury North when not authorised to do so. That offence occurred on 19 December 2005. Again, it was alleged that the appellant had never held a driver’s licence anywhere in the Commonwealth. For this offending the magistrate ordered costs and fees totalling $262 and disqualified the appellant from holding or obtaining a driver’s licence for a period of three years.
The fourth complaint charged the appellant with two offences on 20 March 2006 on Diment Road at Salisbury North. They were driving an unregistered motor vehicle and driving when not authorised to do so. It was alleged the appellant had never held a driver’s licence anywhere in the Commonwealth. The magistrate did not fix a penalty in respect of the first offence. She ordered the appellant to pay fees and costs totalling $162. She disqualified the appellant from holding or obtaining a driver’s licence for a period of three years. That penalty was imposed in respect of the second count. The magistrate made that period of disqualification cumulative upon the period of disqualification ordered on the third complaint.
After ordering all of these penalties, the magistrate then sentenced the appellant to imprisonment for a period of five months, the sentence to be suspended upon the appellant entering into a bond to be of good behaviour for a period of 15 months.
The effect of the orders made by the magistrate was to disqualify the appellant from holding or obtaining a driving licence for a period of six years. The magistrate sentenced the appellant to a period of imprisonment for five months, suspended upon the complainant entering into a bond to be of good behaviour for 15 months. Finally, the appellant was ordered to fees and costs totalling $846.
The appellant appeals on the ground that the penalties, including the sentence of imprisonment, are manifestly excessive.
There is nothing remarkable as to the circumstances in which the offending occurred, save and except for the fact that the appellant has not seen fit to obtain a driver’s licence. There does not appear to be any impediment to him obtaining a licence, but he chose not to do so. When stopped on 24 August 2005, the appellant admitted that he had never held a driver’s licence. On 4 December he was stopped because he was driving an unregistered and uninsured motor vehicle and admitted he did not hold a driver’s licence. On 19 December, the appellant was simply driving to get some cigarettes and, when stopped, he admitted he had never held a driver’s licence. And on 20 March 2006, the appellant was stopped at a random breath testing station.
The appellant was aged 23 years. At the time he was sentenced he was residing in Mackay in Queensland, where he is employed by a mining company. He returned to Adelaide to answer the warrants in relation to this offending. He borrowed money to fly to Adelaide.
The appellant left school during year 9 and began to live independently from his parents from whom he was then effectively estranged. He has been continuously employed since he was aged 14 years. He has had no trouble with either drugs or alcohol. He has no convictions other than the earlier conviction for driving whilst unauthorised to do so. In 2005 he accepted a retrenchment package from General Motors Holdens and moved to Mackay. He now resides in Mackay with his mother, whom he had not seen since he was 14 years old.
The appellant’s offending displays a marked disdain, if not contempt, for his legal obligations. Notwithstanding that he had a conviction for driving without any licence or permit, he has continued to drive. Despite the fact that he was caught again on 24 August, he continued to offend. The frequency of the offending suggests that he did not feel in the least inhibited from driving. It is apparent that in no respect was he deterred from reoffending, either by his previous conviction or being subsequently apprehended for the same offence.
The appellant had initially appealed on the ground that the magistrate had erred in that she had acted contrary to the terms of s18A of the Criminal Law (Sentencing) Act 1982 (“the Sentencing Act”). The notice of appeal was drawn before the appellant’s solicitor had had an opportunity of examining the remarks made by the magistrate. The notice of appeal was drawn by reference to the court record which suggested that the magistrate had imposed a term of imprisonment in respect of all of the offences, some of which were not punishable by a term of imprisonment. However, an examination of the magistrate’s reasons discloses that her intention was only to order a term of imprisonment in respect of the charges of driving whilst unauthorised to do so. Those offences are all punishable by a sentence of imprisonment given that they are subsequent offences. The appellant therefore does not press this ground of appeal.
The appellant then contended that the magistrate had erred in failing to have any or due regard for the provisions of s 11 of the Sentencing Act. Section 11 provides:
(1)     A sentence of imprisonment may only be imposed –
(a)     if, in the opinion of the court –
(i)the defendant has shown a tendency to violence towards other persons; or
(ii)the defendant is likely to commit a serious offence if allowed to go at large; or
(iii)the defendant has previously been convicted of an offence punishable by imprisonment; or
(iv)any other sentence would be inappropriate, having regard to the gravity of circumstances of the offence; or
(b)     if a sentence of imprisonment is necessary to give proper effect to the                 primary policy stated in section 10(2).
(2)This section does not apply to a sentence of imprisonment imposed for the enforcement of sentence.
The only relevant provision in s 11 is s 11(1)(a)(iv) The magistrate’s remarks, when ordering the penalty, show that she did not expressly refer to s 11. However, the appellant’s offending was of such a repetitive kind and after a previous conviction that it clearly called for a period of imprisonment. As I have said, the appellant’s offending displayed a disdain, if not contempt, for his legal obligations. There was an unjustified frequency of offending. There were no mitigating circumstances of any kind. The sentence was well within the sentencing discretion. This was a case where it was appropriate to order a term of imprisonment. There is, in short, no ground upon which to interfere with the sentence of imprisonment. The magistrate clearly had regard to the appellant’s good record and continuous employment when deciding to suspend the sentence. At the same time, the magistrate has, as her discretion permitted her to do so, brought home to the appellant the seriousness of his offending by ordering this period of imprisonment. This ground of appeal cannot prevail.
The appellant then submitted that the magistrate had failed to have regard to the totality principle and to his personal circumstances when making the order of disqualification on the fourth complaint. Although s169A of the Road Traffic Act1961 invests a court with power to make periods of licence disqualification cumulative upon one another, that power must be exercised in accordance with proper sentencing principles: Boehm v Milham (1980) 24 SASR 98 at 104 per King CJ. An important sentencing principle is the totality principle. It applies to licence disqualifications as well as to periods of imprisonment.
Ordinarily, offences which have been committed on separate occasions will attract separate penalties and will be likely to attract cumulative penalties. However, an order to disqualify a young man in full employment from holding or obtaining a driver’s licence for a period of six years is, in my view, a crushing penalty. He will not be able to drive again until he is aged about 30 years. Although the appellant is to be severely punished for failing to obtain a driver’s licence and for driving without one, there is no suggestion that, on any of the occasions in question, there was any aggravated feature of the driving. There was no suggestion that he was driving other than in a normal and safe manner. An order for disqualification for as long a period as six years will have a particularly devastating effect should the appellant seek employment for a job which involves driving. Plainly, he will not be able to apply for such employment. It is unnecessary for the court to spell out the reasons why there are real disabilities in modern times of being unable to drive, especially in an area where there might not be adequate public transport.
The appellant is liable to serve a mandatory period of three years in any event. As I have said, that penalty cannot be reduced. In my view, it is appropriate, in all the circumstances, and particularly because of the appellant’s good record in every other respect and because he has been in full employment since he was aged 14, that all of the periods of disqualification should be served concurrently. Any other order has a real potential to prevent this young man from remaining in full employment. The interests of the community in rehabilitating the appellant will be better served by him remaining in full employment rather than being punished by a long and crushing period of disqualification.
The appeal will therefore be allowed for the purpose only of varying the order for disqualification. It will be dismissed in all other respects.
The orders of the court will therefore be:
1Appeal allowed.
2Vary the orders of the magistrate herein by striking out the order made on 5 February 2007 on the file MCPAR-06-5783 disqualifying the appellant from holding or obtaining a driving licence for a period of three years cumulative upon the order of disqualification made on the file MCPAR-06-2925 and substituting therefor an order disqualifying the appellant from holding or obtaining a driving licence for a period of three years, the order to operate concurrently with the other orders of disqualification made that day in respect of the appellant.